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Tuesday, September 12, 2017

Religious test

Some conservative pundits have criticized Sen. Feinstein's objections to a Catholic judicial nominee on the grounds that she's applying an unconstitutional "religious test" to the nominee. I think that's an ill-conceived strategy, on Constitutional and pragmatic grounds alike. As I said in a Facebook discussion:

i) We need to avoid treating all religions alike. Catholic social conservatives can be useful in the culture wars. If, however, the nominee were a Muslim, it would be valid to raise questions about his religious outlook. We need to take content into account.

Suppose a Scientologist runs for the Senate and is legally elected. He must be seated. The voters were foolish, but that's the price we pay for representative democracy. He cannot be denied office even though he's a nutjob. But nominees are in a different category. It does come down to advice and consent.

We shouldn't back ourselves into a corner where, if a Muslim were nominated to the Supreme Court, or Defense Secretary, or DCI, senators are not allowed to oppose him on religious grounds.

ii) Instead of attacking Feinstein's's position on procedural grounds, we should attack her ideology. That's where the challenge needs to be engaged.

This also goes to a weakness in social conservative politics. There's an asymmetry in between liberals and conservatives in the public square. Liberals are utterly uninhibited and outspoken in presenting their position. By contrast, conservatives are often afraid to explain and defend their position or directly attack the opposing position, because their position is too "controversial" or off-putting. Instead, they take refuge in generic categories like "religious liberty". As a result, many Americans have never heard the arguments for socially conservative positions. They don't know that there are any arguments for socially conservative positions.

iii) To my knowledge, there's nothing unconstitutional about taking a nominee's religion into consideration. If we're dealing with a duly elected official, then that's where the ban on religious oaths as a requirement for holding office kicks in. (So I understand.) Doesn't this go back to when you had to be a member of the church of England to hold office? That's the kind of thing the framers of the Constitution were shadowboxing with.

You ducked the issue of whether that has reference to a religious oath of office, which intentionally bars people who don't belong to state religion or established church. You seem to be interpreting the phrase very broadly, in a way that strikes me as contrary to the historical background. To say senators can't use that as a test begs the question of what was meant by a "religious test," in the context of original intent.

Again, are you operating with a dictionary hermeneutic, where you look up words in a dictionary, like "religious" and "test," and conclude that the Constitution bans religious tests in that sense? If so, that's a flawed hermeneutic. The meaning of the phrase depends on the point in contrast. To my knowledge, this parallels the establishment clause. When the colonies formed a central gov't, they were ceding some of their autonomy to the central gov't, and they didn't wish to cede any more authority than was absolutely necessary. So, for instance, they wished to avoid the central gov't enacting a national church, where membership in the church conferred certain perks. The point of contrast was the Church of England, where Anglicans traditionally had access to public office or educational institutions (e.g. Oxford, Cambridge) denied to Catholics or non-conformists. I believe that's what the framers had in mind. That's the kind of thing they were prohibiting.